Die20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 475

FEDERAL CIRCUIT COURT OF AUSTRALIA

DIE20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 475

File number(s):

BRG 395 of 2020

Judgment of:

JUDGE EGAN

Date of judgment:

12 March 2021

Catchwords:

MIGRATION –  Application for Protection Visa based upon a number of grounds – most recent claims made at a late stage of the applicant’s visa history – careful consideration of all issues by Tribunal – no jurisdictional error established – application dismissed.   

Legislation:

 Migration Act 1958 (Cth) ss 5H, 5J, 5J(1), 5J(5), 36(2)(a), (aa), (b) and (c), 36(2A), 65.

Cases cited:

 CED15 v Minister for Immigration and Border Protection [2018] FCA 451.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30.

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47].

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Number of paragraphs:

38

Date of last submission/s:

8 March 2021

Date of hearing:

8 March 2021

Place:

Brisbane

Solicitor for the Applicant:

Ms Zhao of NB Lawyers

Counsel for the First Respondent:

Mr Byrnes

Solicitor for the First Respondent

Sparke Helmore

Second Respondent:

Submitting appearance save as to costs

ORDERS

BRG 395 of 2020

BETWEEN:

DIE20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	12 MARCH 2021

IT IS ORDERED THAT:

1.The Amended Application for Review filed on 1 October 2020 be dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $7, 467.00.

REASONS FOR JUDGMENT

JUDGE EGAN:

1. The applicant is a citizen of South Korea who first arrived in Australia as the holder of a Student (Sub Class 575) Visa on 8 February 2008.

2. The applicant’s relevant immigration history was as set out in the submissions of the first respondent as follows:

   “[4] The applicant’s subsequent immigration history is as follows (CB 42-43):

   [4.1] On 22 October 2008, he arrived in Australia as the holder of a Working Holiday (Subclass 417) visa. He departed on 22 October 2009.

   [4.2] On 26 October 2009, he returned to Australia as the holder of an Electronic Travel Authority (Subclass 976) visa.

   [4.3] On 5 February 2010, he was granted a Visitor (Subclass 676) visa. He was granted a further Visitor visa on 23 April 2010 and departed Australia on 5 October 2010.

   [4.4] On 13 October 2010, he arrived in Australia as the holder of an Electronic Travel Authority (Subclass 977) visa. That visa ceased on 13 January 2011, at which time he became an unlawful non-citizen. The applicant departed Australia on 23 January 2011.

   [4.5] On 9 March 2011, he again arrived in Australia as the holder of an Electronic Travel Authority (Subclass 976) visa.

   [4.6] On 22 June 2011, he was granted a Student (Subclass 572) visa. He departed Australia on 23 January 2013.

   [4.7] On 4 February 2013, he arrived in Australia as the holder of a Student (Subclass 573) visa.

   [4.8] On 30 August 2013, he applied for a Combined Partner (Subclass 820/801) visa. The department refused that visa on 11 March 2015. That decision was affirmed by the Tribunal on 6 June 2016.”

3. The applicant applied for a Protection Visa under the provisions of s. 65 of the Migration Act 1958 (Cth) (‘the Act’) on 5 July 2016.

4. On 3 March 2017, a delegate of the Minister refused to grant the visa.

5. On 14 March 2017, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the decision of the delegate.

6. On 24 February 2020, the applicant was invited to attend a hearing before the Tribunal. On 19 March 2020, the applicant provided submissions to the Tribunal in support of his claims.

7. On 27 March 2020, the applicant appeared before the Tribunal with the assistance of a migration representative. Following that hearing, the applicant’s representative caused further documentation and a statement of the applicant to be provided to the Tribunal.

8. On 19 June 2020, the Tribunal affirmed the decision of the delegate to refuse to grant the visa.

   Grounds of Review

9. On 10 July 2020, the applicant filed an Originating Application for Review of the decision of the Tribunal. At the hearing before this Court, the applicant relied upon the grounds of review as set out in an Amended Application for Review filed on 1 October 2020. Those grounds of review were as follows:

   “Ground 1

   The Tribunal failed to consider that the applicant’s claim that he is a LBGT member to face persecution in the South Korea military

   1) The Tribunal diverted his attention to the applicant being a LGBT member in South Korea but failed to consider meaningfully the applicant’s true claim of being a LGBT person in the South Korea military facing persecution.

   Particulars:

   a) In assessing the country information relevant to the applicant’s claim, the Tribunal selected information regarding LGBT person in South Korea and ignored the information relating to LBGT person in the military where the Applicant claims be to a LBGT person in the military facing persecution. The Tribunal’s unreasonable selection or assessment of country information constitutes apprehended bias or legal unreasonableness.

   b) The Tribunal failed to genuinely engage with and address the grounds that the Applicant advanced, being a LBGT person facing persecution in the military.

   c) The Tribunal took irrelevant considerations of the country information whether a LBGT person in South Korea would face persecution, irrelevant to the applicant’s claim of being a LBGT person in South Korea military.

   d) The Tribunal simply relayed a series of general information from the country information and made determination at a high level of generality without any attempt to apply the information to the applicant’s claim correctly. Consequently, the Tribunal failed to deal with the applicant’s claim of being a LBGT person in the South Korea military.

   2) The Second Respondent failed to determine whether the Applicant’s fear is well-founded as required by s5J.

   a) The Tribunal failed to consider relevant Country information regarding the LGBT members facing persecution in South Korea military, provided by the applicant and from its own research, namely the latest US state Department’s report on human rights in Korea, being the crucial information in relation to the applicant’s objective well-founded fear.

   b) The Tribunal failed to consider or engage with the Applicant’s oral evidence sufficiently, being the subjective element of the well-founded fear.

   3) The Tribunal overlooked, or deliberate avoided, the issue whether as a member of LGBT group, the applicant will face persecution in the South Korea military, being central to the Applicant’s claim of protection.

   Particulars:

   a) In the hearing, the Tribunal repeatedly stated that he would like to source and double check the country information about the treatment of LGBTI in the military specifically, however, the Tribunal chose to ignore the information with respect to the treatment of LGBTI member in the military in the country information referred by himself, being ,

   b) Further, the Tribunal failed to determine this issue in its final decision, evidencing the Tribunal’s unwillingness to deal with the important integer of the Applicant’s claim.

   4) As a result of the Tribunal’s failure to deal with the applicant’s claim that he is a LGBT member in South Korea military facing prosecution, the Tribunal also failed to consider the applicant’s claim regarding the risk of harm in the military because of him being physically incapable of withstanding the infliction of bashings/battering.

   5) The Tribunal’s determination is unreasonable or illogical.

   Particulars:

   a) The Tribunal finds that any punishment the applicant might receive for evading conscription would be due entirely to the general application or legitimate lawful sanctions, but failed to consider the persecution the applicant may received due to refugee convention reasons outside the general application of law.

   b) In relation to the claim that the applicant may be required to complete alternative service for 36 months, the Tribunal failed to consider the refugee convention reason that whether the applicant, being in a special social group of LGBT, will face persecution in completing alternative service.

   Ground 2

   The Tribunal failed to determine whether the applicant is a genuine Conscientious Objector

   1) The Tribunal failed to take relevant considerations.

   Particulars

   a) The Tribunal misunderstood the time the Applicant holding views of conscientious objector, deeming the applicant “a latter day conscientious objector, admitting to not having such views until 2016”, where the Applicant informed the Tribunal in the hearing that he held such views 5,6, or 7 years ago, but was too afraid to speak up to the South Korean government.

   b) In absence of adverse credibility findings of the applicant, the Tribunal ignored or failed to genuinely consider the applicant’s claims of being a conscientious objector in the hearing, being that the applicant:

   i. is a pacifist;

   ii. is against any wars and use of arms or violence;

   iii. does not want to harm any living things;

   iv. does not participate in any riots, congregation or any activities;

   v. held such views held such views 5,6, or 7 years ago, but was too afraid to speak up to the South Korean government;

   vi. had no other options but agreeing to go to military service;

   vii. is a conscientious objector also because of his Christian belief;

   viii. did not disclose of being a conscientious objector at the time of his protection visa application because he was self-represented; and

   ix. was going to give evidence of being a conscientious objector at a protection interview but the interview did not occur.

   2) The Tribunal’s findings that the applicant being not a genuine conscientious objector is contradicting and illogical, lack of the meaningful intellectual engagement.

   Particulars:

   a) The Tribunal found that the applicant did not claim to be a conscientious objector on the grounds of his religion, being part of the grounds for the applicant not being a genuine conscientious objector. However, the client indicated at the hearing that he is a Christian, and his religious belief supports his claim as a pacifist and conscientious objector.

   b) The Tribunal’s finding is illogical.

   3) The Tribunal failed to deal with the Applicant’s claim of being a conscientious Objector sufficiently.

   Ground 3

   The Tribunal failed to deal with the applicant’s claim of the consequence of violation of overseas travel policies and procedures

   Particulars

   1) The Tribunal failed to consider or engage or deal with the applicant’s claim that he is subject to jail terms if he returns to South Korea because he has violated the overseas travel policies and procedures of South Korea.

   2) The Tribunal failed to determine whether the Applicant’s fear to return is well-founded as required by s5J.

   Ground 4

   The Tribunal failed to consider the complementary protection criteria meaningfully.

   Ground 5

   The Tribunal’s decision is unreasonable, illogical or otherwise an unlawful exercise of its power. The Tribunal failed to conduct a review properly under s. 36(2)(a) and s 36(2)(aa).”

10. At [3] – [7] inclusive of its reasons, the Tribunal set out the relevant matters for its consideration under the provisions of ss. 36(2)(a), (aa), (b) and (c), 5H and 5J of the Act.

11. At [8] of its reasons, the Tribunal recorded that it had had regard to, and taken account of, the Refugee Law Guidelines and Complimentary Protection Guidelines prepared by the Department of Home Affairs, as well as country information assessments prepared by DFAT for protection status determination purposes relevant to the decision under consideration.

12. At [26] – [31] inclusive of its reasons, the Tribunal recorded the applicant’s claims for protection as follows:

    “[26] The applicant claims that from 2008 to 2013, the applicant had travelled and studied in Australia.

    [27] The applicant claims that in 2013, he had to return to South Korea as he still had the compulsory military service obligations to complete. The applicant claims he requested a further year's extension.

    [28] The applicant claims he applied for a Permanent Partner Visa in Australia in August 2013.

    [29] The applicant claims that in January 2014, he was informed that he was required to return to South Korea to undergo his military service. He claims that he requested a further extension to stay overseas again, explaining his circumstances that he was waiting for the decision on his Permanent Visa and that he was on a Bridging Visa. He claims that he was unable to travel overseas and that his passport had also expired. He claims his request was declined. He claims that he was informed of the disadvantages for not following the procedures.

    [30] The applicant claims the penalty for failing to return to South Korea and undergo compulsory military service are imprisonment for a maximum of three years; compulsory military service obligations until the age of 37; severe financial difficulties as his work rights will be cancelled until the age of 40; severe disadvantages on his basic human rights as his personal information will be published on the internet which he believes is unfair and a limitation on travel.

    [31] The applicant claims that without working rights until the age of 40, he would not be able to support himself financially. He claims that he does not own or inherit financial luxury from previous generations. He claims that he will have to work. He claims that at the end of his prison term, he will be 32 years of age and literally unemployed for eight years. He claims that when he gets his work rights back he will be out of the job market for not having worked for 10 years.”

13. At [32] of its reasons, the Tribunal recorded the applicant’s fears of harm should he be returned to South Korea as having been based upon the following:

    ·     His "social" persuasion being of homosexual preference;

    ·     His religious persuasion;

    ·     The likelihood of being subjected to ill and degrading treatment; and

    ·     His being physically incapable of withstanding the infliction of bashings/battering likely to occur.

14. At [34] of its reasons, the Tribunal set out in whole the applicant’s pre-hearing submission emailed by the applicant’s migration representative to the Tribunal on 19 March 2020. [1] That submission dealt with all of the bases on which the applicant made his claims, namely:

    (a)The factors going to a determination that an applicant had a well-founded fear of persecution.

    (b)Country information said to support the applicant’s claims that the applicant would be persecuted as a conscientious objector opposed to military service, as well as the possibility his life might be at risk arising from his “social” persuasion as a homosexual, his religious persuasion, the likelihood of his being subjected to degrading treatment and his physical incapacity of withstanding the infliction of bashings/battering which were submitted as being likely to occur.

    (c)Persecution generally.

    (d)The likely prospect that the applicant’s assertion that he would suffer persecution if returned to South Korea was a real chance.  

    [1]           Court Book (CB) p. 95 – 106 inclusive.

15. At [45] – [48] inclusive of its reasons, the Tribunal set out what it had to have regard to when considering whether the applicant had a well-founded fear of persecution if returned to South Korea, as well as whether the applicant’s claims appeared credible. At [48] of its reasons, the Tribunal noted that it had carefully considered all of the applicant’s claims, both individually and cumulatively before making its findings.

16. At [49] of its reasons, the Tribunal recorded that it had strong reservations about the genuineness of the applicant’s claims.

17. At [51] of its reasons, the Tribunal noted that a number of binding authorities had found that a delay in seeking a protection visa could support findings adverse to an applicant on questions of credit, as well as adverse findings to the effect that the applicant’s claimed fear of persecution, if returned, was not well-founded. As Thawley J said at [21] - [24] in CED15 v Minister for Immigration and Border Protection [2018] FCA 451:

    “[21] In his written submissions, the appellant was more specific. The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:

    69. The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.

    70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.

    [22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.

    [23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70]. The conclusions which the Tribunal reached were open on the evidence before it. Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true. Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox. 

    [24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].”

18. At [53] of its reasons, the Tribunal noted that it had discussed with the applicant that notwithstanding that a request for an extension of time for the commencement of military service in South Korea was rejected in January 2014, the applicant had not applied for a protection visa until some 2.5 years later on 5 July 2016. The Tribunal also pointed out that it was of concern to it that the applicant had only applied for a protection visa after the rejection of a partner visa application had been affirmed on review, such decision having been handed down on 9 June 2016. At [54] of its reasons, the Tribunal also noted that the applicant’s partner visa application had coincidentally been made upon the expiration of his student visa in 2013. At [57] of its reasons, the Tribunal noted that at no time prior to the refusal of the applicant’s application for extension of time for the commencement of compulsory military service in South Korea had the applicant claimed to be a conscientious objector. At [58] of its reasons, the Tribunal noted that the applicant had not mentioned the fact of his claim for conscientious objection at the time of the lodgement of his protection visa application in July 2016. At [59] of its reasons, the Tribunal noted that though the applicant had previously applied for a partner visa in respect of a heterosexual relationship, the applicant had told the Tribunal that he had, in 2016, determined that he was a homosexual. At [64] of its reasons, the Tribunal noted that though the applicant claimed to fear persecution if returned to South Korea because he was a practising Christian, 30% of South Korean citizens were in fact Christians.

1. At [75] of its reasons, the Tribunal indicated that it was impressed by the applicant as a witness, referring to the applicant as being articulate, spontaneous and fulsome. Notwithstanding those findings, the Tribunal expressed its concerns at [76] of its reasons that there was very little corroborative evidence in support of the applicant’s claims, there being no witness statements or witnesses called to support the applicant’s claims.

2. At [81] – [88] inclusive of its reasons, the Tribunal considered the fact that South Korea had laws which provided for citizens to undertake military service, as well as laws which provided for the imposition of penalties if military service was avoided, or if someone undertaking military service deserted. At [84] of its reasons, the Tribunal noted that recent US State Department country information dealing with human rights in Korea had stated that in December 2019, the South Korean National Assembly had amended the law so as to allow conscientious objectors to fulfil military service obligations by working for a 36 month period at a correctional facility. It further noted that the government had ceased detaining, charging or imprisoning conscientious objectors to military service in 2018. At [86] of its reasons, the Tribunal recorded that it accepted the country information contained in the latest US State Department Report on human rights in Korea, finding that it was satisfied that the applicant would not be detained, charged or imprisoned if he maintained his claim that he was a conscientious objector if returned to South Korea. In doing so, the Tribunal preferred that country information to other country information before it, such as that contained in an Amnesty International Report. There was no basis for a finding that in preferring the US State Department country information the Tribunal had acted either arbitrarily, capriciously or unreasonably. As was said in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 per Crennan and Bell JJ at [130], [131] and [135]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

3. At [87] of its reasons, the Tribunal acknowledged that though the applicant might be liable for punishment if it was held that he had intentionally evaded conscription, the Tribunal was of the view that any punishment that the applicant might receive as a consequence would be due entirely to the general application of legitimate lawful sanctions which prevailed in South Korea, and which applied to all of its citizens. It was open for the Tribunal to find, as it did at [88] of its reasons, that any requirement for the completion of 36 months duty at a correctional facility as an alternative to the performance of military service was also of general application. At [89] of its reasons, the Tribunal relied upon US State Department country information which recorded that there were no significant reports regarding prison and detention centre conditions which raised any human rights concerns. It was noted that laws prohibited arbitrary arrest and detention. It was open for the Tribunal to find, as it did at [89] of its reasons, that there was no real chance that the applicant would face serious harm associated with any period of detention due to his refusal to undertake military service. It was also open for the Tribunal to find, as it did, that the mere fact of having a criminal record relating to the commission of an offence which gave rise to the imposition of a legitimate state sanction would not amount to serious harm or significant harm under either s. 5J(5), 5J(1) or s. 36(2A) of the Act.

4. Whilst acknowledging that some bullying could occur during a period of military service, at [90] – [99] inclusive of its reasons, having analysed closely the applicant’s claims about his LGBTI status against US State Department country information, the Tribunal found that there was no real chance that the applicant would suffer serious harm either if he chose to, or was required to, complete military service upon his return to South Korea. At [101] of its reasons, the Tribunal found that the applicant’s claimed fears about contracting Covid-19 should he return to South Korea, even if well-founded, would not give rise to the satisfaction of the relevant protection criteria because such a claim was not based upon his race, religion, nationality, political opinion or membership of a particular social group

5. At [102] – [110] of its reasons, the Tribunal found that on the basis of all of the material before it and all of the applicant’s claims, the applicant did not have a well-founded fear of persecution if he was then returned to South Korea, or if he was returned at a time in the reasonably foreseeable future. The Tribunal had relevantly considered all matters before it and had not failed to make any obvious enquiry about a critical fact. [2]

   [2]           Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] – [27].

6. In circumstances where the applicant’s claims had been carefully considered both individually and cumulatively, the Tribunal was entitled to find that the applicant did not satisfy the criteria for protection under s. 36(2)(a) or the criteria for complimentary protection under s. 36(2)(aa) of the Act.

7. Ground 1 of the Amended Application for Review is without merit. In a lengthy decision, the Tribunal relevantly dealt with all of the applicant’s LGBTI claims relating to possible persecution for all of the reasons advanced, including by reason of the applicant’s failure to return to South Korea as well as to the possible imposition of a penalty as a result of matters related to non-completion of military service and the consequences thereof. When so closely analysing the applicant’s claims, there was no evidence that the Tribunal was in any way biased, or that it had acted unreasonably. The Tribunal weighed up the applicant’s clams about his LGBT friend, but did not accept such claims because of a lack of detail and substantiation. 

8. The Tribunal demonstrated an active and intellectual engagement with the articulated claims made to it. It properly referred to the fact that South Korean laws providing for the imposition of a penalty or a term of imprisonment for the failure of a citizen to undertake military service were laws of general application which did not specifically target the applicant for any reason which might give rise to persecution. There was nothing in the Tribunal’s approach to its decision making task which might have given a fair minded and informed person a reasonable apprehension that the Tribunal might not have brought an impartial mind to the task of arriving at its decision. [3] Further, there was no basis for the claim that the Tribunal had acted unreasonably when making its findings. [4] The Tribunal addressed all relevant claims and was not required to refer to each and every part of the evidence before it when making its findings.[5]

   [3]           ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] – [36].

   [4]           Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

   [5]           Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR

   593 at [47].

9. There is no merit to Ground 1 of the Amended Application for Review.

10. As to Ground 2 of the Amended Application for Review, the Tribunal did actively engage in an assessment of the applicant’s claims that he was a conscientious objector. It addressed such claims in the context of the factual matrix before it. The Tribunal noted that the claim was made in 2016 after the applicant had failed to comply with the laws of his home country which affected him as one of its citizens. The Tribunal adverted to the fact that it had doubts as to the veracity of such claims because they had been made late. The Tribunal addressed the applicant’s claims that he would be persecuted by reason of his religion, by reason of his being a pacifist, and by reason of his LGBTI status.

11. There is no merit to Ground 2 of the Amended Application for Review.

12. As to Ground 3 of the Amended Application for Review, such claim was extensively canvassed by the Tribunal. The Tribunal addressed issues relevant to the applicant’s failure to return to South Korea and undertake military service. This Ground has been canvassed in the Court’s consideration of, and reasons relating to, Ground 1.

13. There is no merit to Ground 3 of the Amended Application for Review.

14. Each of Grounds 4 and 5 of the Amended Application for Review are un-particularised, and the submissions of the applicant in respect of such grounds do no more than re-state earlier complaints as made in Grounds 1, 2 and 3.

15. Further, the Tribunal did consider the relevant complimentary protection criteria, but found that the applicant did not satisfy such criteria. In its detailed reasons, the Tribunal set out why it made such findings. Likewise, the Tribunal logically and rationally approached its decision making task.

16. There is no merit to Grounds 4 and 5 of the Amended Application for Review. 

17. The decision of the Tribunal could not be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

    “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76]      As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

18. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

19. The Amended Application for Review is without merit and is dismissed.

20. The Court will hear the parties as to costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       12 March 2021